The Family Law Act in Australia provides where parties to a marriage are granted a “divorce order”, an application to divide their assets must be made within 12 months of the “divorce order”, unless, the parties otherwise consent to an order or leave of the Court is granted.
However, what is the situation where parties are divorced overseas, 12 months has lapsed since their divorce and they are still to divide their jointly owned Australian property?
This was the dilemma that faced the trial judge in a recent case of Anderson & McIntosh (2013). The short facts of this case were, the parties married in 1988 in Queensland.… Read More
After a long marriage Mr and Mrs Pratt separated, following which property settlement and spousal maintenance proceedings were listed for a three day hearing.
At the commencement of the hearing, the wife sought an adjournment for a significant period, being two years. The trial judge ordered the proceedings be adjourned for at least three years. Also, the husband’s application for a reduction in spousal maintenance (he was paying $6,500.00 per month) was dismissed.
The application for a lengthy adjournment was provided for under Section 70(5) of the Family Law Act. In general terms,
this section of the Act provides that if there is likely to be a significant change in the financial circumstances of the parties to the marriage and having regard for the time when a change is likely to take place, it is reasonable to adjourn proceedings.… Read More
Under the provisions of the Family Law Act is that “the welfare of the child is paramount.” However, circumstances may exist in upholding the principle, where it may be necessary that when deciding with whom a child or children should live, circumstances may outweigh a parent’s submission that it is in the best interest of the child to live with that parent. A court may order that a child reside with some person other than a parent.
In the recent decision of Withall, Richardson and Powles  which was before the Family Court in Western Australia, the judge was required to decide whether the children should reside with a parent or a person who was not a biological member of the children’s family.… Read More
The above song title written by Louis Jordan, of course, is used in a different context when the question is asked in a legal proceeding. From biblical times it is told that Solomon was required to decide the parentage of a child and to the present time, disputes continue over parentage.
Thankfully, science can, in many cases, put the question beyond dispute, following the advent of DNA testing.
When a parentage of a child is at issue under family law proceedings, the Court may require a “parenting testing procedure” to be carried out to help in determining the parentage. Such an order may be made as follows:
… Read More
- at the request of a party to the proceedings;
- at the request of a party representing a child;
- at the Court’s own initiative.
Recently the Local Court Magistrate was required to rule on whether a couple whose Islamic marriage included a contract that the husband pay his wife a $50,000 “deferred dowry” if he left her was enforceable.
The short facts were that the parties had married under Islamic Law in 2004. The man divorced his wife under Islamic Law by telling her during an argument “you are divorced”. The magistrate upheld the contract between the parties and found the contract was enforceable. The decision was appealed to the Supreme Court of New South Wales on a number of grounds.… Read More
An application was made before the District Court of NSW in late 2011 to trace the name of the biological father with the name of a former lesbian partner of the birth mother.
This application was made by a former lesbian partner of the mother of a ten year old child. The former partner and the mother chose to have a child by artificial insemination. The mother and the former partner met the sperm donor via a newspaper advertisement. The mother was inseminated. A child was born thereafter. The sperm donor was registered on the child’s birth certificate. Indeed, the sperm donor had a close relationship with the child and contributed tens of thousands of dollars to the child’s welfare.… Read More
Not only are parents morally obligated to support their children we should be aware that there is also an obligation for parents to maintain their children in a financial sense. Human nature being what it is, some parents, will not comply with their obligations to support their children. Indeed, failure of a parent to pay maintenance towards a child has been a ongoing social problem. Various Acts of Parliament have been enacted in an attempt to enforce maintenance payments with only a limited amount of success.
It is believed that arrears have become more readily recoverable since the creation of the Government instrumentality, the Child Support Agency (“CSA”).… Read More
When couples separate they are often required to divide the assets and debts that have been accumulated during the course of their relationship. There are a number of ways this can be done. The couple can agree to divide their property without court intervention. Where the parties cannot agree on how to divide their assets or debt it is possible to apply to the court for orders as to how their property and debts should be divided.
When a case goes to court to determine a financial order, the court generally begins by determining the assets and liabilities of the parties. … Read More